DUI Enforcement - "Get Them, But Let Me Go"

[bcjack]

Cool editorial...

http://www.officer.com/article/article.jsp?siteSection=19&id=29130:biggrin:

[redhead]

Cool editorial...

Found this is be the best part of the whole article (it was all good btw)

And this is not a police problem, or even a criminal justice problem. It is a societal problem. As long as the first reaction of the typical offender is to try and evade responsibility for their actions, rather than to accept it, we?re going to have to contend with these whiny-baby ?that?s not fair? protests of innovative police work. In the meantime, suck it up. The better you do your job, the more people will complain. But the public will be better protected, even if you are only protecting them from themselves.

[FILDO]

I live in Fresno and have heard all the reasons and excuses as to why this should or shouldn't be allowed. The only problem I see with it is if an officer watches a drunk individual enter his/her vehicle and drive away, wouldn't that be a major liability for the PD if that individual kills someone prior to being pulled over? Phil

If you want to read more on this matter, go to WWW.FRESNOBEE.COM

[cal911gal]

Not that I am necessarily against this particular procedure......but........I would think that this is the same as parking your black and white outside the bar and following the first person who leaves. I believe they throw out cases for entrapment, no?

Just a thought....

[Chipper]

"Not that I am necessarily against this particular procedure......but........I would think that this is the same as parking your black and white outside the bar and following the first person who leaves. I believe they throw out cases for entrapment, no?

Just a thought.... "


What??? Negative... Entrapment is leading someone to believe that what they are doing is ok, even when it's not, and when they do it, you arrest them. And no, parking behind a billboard and running radar isn't entrapment either, contrary to some people's beliefs.

How is parking a black and white outside a bar entrapment?? I personally don't do it, but if some moron walks out of a bar Sh*tfaced and gets into a car and drives away with a black and white parked there, then that dumba**, (job security) needs to spend the night in lockup. And if the officer has PC to stop the car and they aren't intoxicated, then they can go on their merry way, unless a citation for something else is in order.

I'm all for any program that deters drunks from getting in their cars and driving.

[Mac]

Not that I am necessarily against this particular procedure......but........I would think that this is the same as parking your black and white outside the bar and following the first person who leaves. I believe they throw out cases for entrapment, no?

Just a thought....
'Entrapment' is defined as enticing somebody to do something that they otherwise might not have done. It would be entrapment if you had a plainclothes officer go into a bar and start buying drinks for everybody.....but if you're just sitting outside a bar and stopping people who've been drinking of their own accord, there's no entrapment involved.

[CRW]

I don't see a problem with it. The way I see it is if you sit on a bar, catch a .22 deuce leaving, hook him up a tenth or two down the road, he/she doesn't have the chance to kill your/my family members/friends/beat partners...... Hook em up and let the courts figure it out. I'm not advocating the violation of people's civil rights but there is nothing wrong with aggressive enforcement laws already on the books. Pretext stops, after all, are legal.

[FILDO]

I don't see a problem with it. The way I see it is if you sit on a bar, catch a .22 deuce leaving, hook him up a tenth or two down the road, he/she doesn't have the chance to kill your/my family members/friends/beat partners...... Hook em up and let the courts figure it out. I'm not advocating the violation of people's civil rights but there is nothing wrong with aggressive enforcement laws already on the books. Pretext stops, after all, are legal.

And if he runs someone over as he's backing out of his parking stall?

[FILDO]

UPDATE:

Fresno Police Chief has made some changes to this operation.
1. Officers will no longer be able to sit inside bars and watch patrons.
2. If an officer suspects someone is drunk, they must stop them before they are able to drive away.

[CRW]

charge him with felony...

[Chipper]

"And if he runs someone over as he's backing out of his parking stall? "

Then you charge him accordingly. How about the perp take responsibility for his actions instead of blaming the police, because "They should have stopped him from driving", blah blah blah. Heck, why not sue the bar for giving him so much beer?? No, No, wait, lets sue Budweiser for making the beer, yeah, thats the ticket. Oh, but the police have a bottomless wallet, so lets get them too:badgrin: :badgrin: :badgrin:

[FILDO]

What liability does FPD have if they knowingly let someone drive away? I don't agree with drunk driving but it seems the FPD is really pushing it here.

[Chipper]

"What liability does FPD have if they knowingly let someone drive away? I don't agree with drunk driving but it seems the FPD is really pushing it here."

How do they know for sure someone is too intoxicated to drive?? Just because someone walks out of a bar and gets into a car isn't PC for a stop. Now if they STAGGER out of a bar and get into a car, different story. However, I have arrested many 23152 that were not "Staggering" or falling down. Once they leave and start driving, now the officer can get some good driving observations as well, and PC for a stop.

Even if an off duty officer watches someone drink a beer and get into a car and drive, that still doesn't mean that person is 23152. Will they register on a PAS? Of course, but probably not over .08%.

The fact is, I DO NOT believe FPD has any liability here, but that doesn't stop some scumbag attorney from filing a BS case.

[SuperTrooper]

UPDATE:

Fresno Police Chief has made some changes to this operation.
1. Officers will no longer be able to sit inside bars and watch patrons.
2. If an officer suspects someone is drunk, they must stop them before they are able to drive away.

Do you have any sources you can cite or links to any factual articles? If not then I'm calling BS.

[FILDO]

UPDATE:

Fresno Police Chief has made some changes to this operation.
1. Officers will no longer be able to sit inside bars and watch patrons.
2. If an officer suspects someone is drunk, they must stop them before they are able to drive away.

Do you have any sources you can cite or links to any factual articles? If not then I'm calling BS.

Copied and pasted from www.fresnobee.com



Fresno bar stings will continue
However, officers will not be inside establishments; they will be outside.
By Tim Eberly / The Fresno Bee

(Updated Wednesday, March 15, 2006, 5:36 AM)

Fresno Police Chief Jerry Dyer announced Tuesday that his department will continue undercover bar stings targeting drunken drivers, but some changes were made to the program.

The next operation is scheduled for Friday, which is St. Patrick's Day. Police have not yet determined which establishments will be monitored.

Dyer said undercover officers will not be positioned inside bars or restaurants. They will only be outside the bars and in parking lots. The chief also said officers ? preferably uniformed ? will approach people who appear to be intoxicated to dissuade them from driving.

"Our main goal is to ensure that individuals are not getting into a car when we know they are intoxicated and driving on our roadways," Dyer said.

Dyer said the decision was made after a series of meetings with high-ranking officers, members of the traffic bureau, Mayor Alan Autry, city officials and the Police Department's legal adviser.

"This was an extremely difficult decision because we do not want to send a message that we're anti-business," Dyer said.

"We don't want to send a message that we're soft on drunk drivers, because we're not."

The changes were made, Dyer said, "simply because of the input from the community and the outcry."

At least one bar owner said the changes are an improvement.

Dave Milutinovich, owner of the Manhattan Restaurant, said he is pleased that officers won't be inside establishments, which he considered an invasion of privacy.

"I think the changes are good," Milutinovich said.

"If that's the way it is, then that's a lot better than the way it was."

He said he believes the Police Department is making a good decision in trying to stop drunken drivers before ticketing them.

Carrie Davis, owner of Fagan's Irish Pub in downtown Fresno, said she doesn't believe police should be in her bar or in the parking lot.

"I don't think it's the American way to spy on people and make judgments," she said.

But Davis said if police approach the stings in an educational way, rather than as a DUI bust, she's satisfied with the new operation.

News of the undercover operations broke on March 8 in a front-page article in The Bee, which prompted a strong reaction from the public and local media.

Dyer described the alterations as a compromise.

"I believe it is a middle ground that will allow us to accomplish what we're trying to accomplish in reducing DUI collisions and at the same time will not cause people to think that we're infringing on their rights," he said.

Police also will give establishment owners signs warning patrons that the business may be monitored by police officers, Dyer said.

"It will serve as a reminder, I think, to every patron that's leaving that establishment that there may be a police officer in that parking lot watching," Dyer said.

Dyer also said the Police Department will work closely with bar and restaurant owners to develop a "transportation system" for drunken patrons to get home safely.

"We believe that the vast majority of owners of establishments in our community are very responsible," Dyer said.

"They do not want their patrons getting behind the wheel of a car and driving intoxicated. I firmly believe that."

Dyer's announcement came the day after Fresno's most recent alcohol-related death.

William Nelson Harbaugh, 31, of Fresno was driving east on Shaw Avenue late Monday when police say he ran a red light at Marty Avenue and slammed into a Jeep Cherokee.

The impact threw Harbaugh's ex-wife, 35-year-old Andrea Harbaugh, out of his Chevrolet pickup truck, police said.

She was pronounced dead after being taken to University Medical Center. Two others were injured.

Harbaugh told police he was coming from The Dirty Olive bar in north Fresno, where he had been drinking.

The Dirty Olive was one of two bars targeted in the March 4 bar sting.

Earlier in the night, Harbaugh had been drinking at another bar, Five, not far from The Dirty Olive, police said.

He faces charges of gross vehicular manslaughter and three counts of felony DUI.

"So today, as a result of this incident, we have a family that is completely destroyed," Dyer said.

"We have a 4-year-old [daughter] who was at home at the time. Her mother is now deceased, killed at the hands of a drunk driver. And her father is in jail, and may be going to prison for many years."

The reporter can be reached at teberly@fresnobee.com or (559) 441-6465.

[jaybb]

When you all pull somebody over, suspecting they are drunk, but they have only a .05 or so, are coherant and polite, and are not legally drunk, do you usually let them go? Or cite them with another violation?

[SuperTrooper]

Thanks FILDO

[Your Mentor]

Jaybb,
There's no short answer here. Every stop is different; different moving violation, different players, etc. Anyway, if we stop a person for a mover and suspect DUI but their BAC turns out low, it's all about impairment. If we observe impairment while performing field sobriety tests and during the contact, we can still arrest. Presumption of impairment, however, is only a legal premise relating to the person's BAC. I've heard of people successfully prosecuted for .05. Personally I've successfully prosecuted for .06%. I was able to clearly show the man was impaired at that BAC. There are two key sections in the DUI statute which bear on your question. The (a) subsection pertains to impairment only; regardless of the person's BAC. The (b) subsection pertains to BAC; regardless of the person's degree of impairment.

Okay, that's the theory behind it all. But as to your question: what if we stop a person who blows a .05 on the PAS and we do not observe impairment during the FSTs? First of all, coherance might play into the equation, but politeness has nothing to do with determining impairment. Otherwise we'd arrest a ton of morning commuters for DUI based solely on this criteria. Anyway, if there is no impairment (as would be the case with a high-tolerance drinker) we have no legal recourse but to cite and release for the initial violation (if warranted). We can't take their keys, leave their car, and take them to Denny's. The lower BAC calls often result in civil liability issues.

[jaybb]

Thanks for the great answer. Really interesting. This might be a stupid question, but do you ever find somebody to be slightly impaired but not enough to justify arrest? I mean obviously a very low BAC will affect a driver, even minamally. Lots of people have trouble with FSTs, even while sober, from what I understand. Let's say they fail one FST, as they may have poor balance or something, but pass the next two with flying colors. How does this affect the officers decision?

[cal911gal]

Thanks for the feedback to my original reply.

As I stated, I personally don't have any issue with doing what it takes to get the drunks off the road.....

I guess I was just rather confused on the whole entrapment/not entrapment thing.....umpteen years ago, when I worked for an SO...there was some sort of legal brief out about cops not "hanging around" bars.......or basically trolling for dueces.

Since those days of old, I've yet to encounter anyone who routinely cruises the area of a bar. I've been told it's entrapment/profiling/whatever to do so......which I always thought was odd....

Anyways, happy duece hunting~

[bcjack]

I heard the same story about hanging around bars to get the drunks, like shooting fish in a barrel...BUT....SO WHAT...If they choose to drink and drive, and an Officer chooses to sit near a bar, and the deuce get arrested....SO WHAT!!!

Kind of like getting a tip that a drug deal is going down at a place and time and the dope detectives stake out the deal....And then the dopers get busted...I see no problem with either one!!!! The bad guys go to jail...and the good guys have saved a life!!!:biggrin:

[pupdog]

I guess the ones against it will also expect everybody's sympathy when it happens to them. Always about the criminal, never about the victim. I guess they've never considered what happens to a body after death. I guess they've never watched how families get torn to shreds by the unexpected death of a loved one.

I work in a winery, and would be very pleased to have plainclothes officers come soak up a little wine country beauty on a saturday afternoon. Keeps my neighborhood safe, keeps the business out of trouble. Perhaps they could also give me a little much-needed feedback on identifying people who are impaired.

[Officer_Grady]

pupdog, the ones normally drunk are red face and talk real loud, those are the ones you start with first.

[bcjack]

YM:

Don't send them to Denny's

[pupdog]

Grady, I knew that! What I'm talking about is how during ride alongs, when we've stopped a speeder, the officer will go get the license, and when we walk back to the partol car, will say the person we've just pulled over has been drinking. To me, these people are PERFECTLY normal. The officer pulls out the pas, and sure enough!! I'm standing there going 'how'd they do that??' What I do is watch cars pull in & observe who got out of the driver's seat, offer plenty of water under the guise of cleansing the pallette, and watch for little things. But remember, I have no training to identify intoxication, and I could be missing a lot.

[Your Mentor]

Jaybb,
The only way to answer your question would be for you to attend the 52 hour DUI enforcement class as a cadet. DUI is THE most complex enforcement task because of laws, case law, and human physiology. It is the #1 most prosecuted and defended crime in the US (and yes, it is a crime). I can only vaguely answer your question: first, no one 'passes' or 'fails' SFST's. We look for impairment and that is all. If they do poorly on one test but appear to do fine on two others, that isn't evidence in favor of release OR arrest. We take everything into account. Driving, speach, objective signs, etc. Anyway, your recent question requires that I quote the legal definition of "under the influence." To be as such, a person's mental and physical abilities must be impaired to such a degree that they can no longer drive with the same care and caution as a sober person. There are too many legal issues, however, which come into play. The presumptive limits are only a few. As for the reliability of the tests, the most recent studies showed that properly trained officers who administer the tests as standardized by NHTSA were accurate in nearly 95% of the tested subjects. Many people tell us they can't perform the tests, but how would they know such a thing? Unless they've been stopped and arrested for DUI before. People who have medical conditions which prohibit proper performance on the tests usually, not always, can't obtain a driver's license because of said medical condition. However, the best test, Horizontal Gaze Nystagmus, requires no balance or effort on the driver's part. And that's the test that usually catches tolerant drinkers.

[makakona]

However, the best test, Horizontal Gaze Nystagmus, requires no balance or effort on the driver's part. And that's the test that usually catches tolerant drinkers.

i was AMAZED the first time i saw this in action. it was performed at a function where no one would be driving, but the person i saw being tested is an alcoholic, a VERY tolerant drinker, and as well as i know him, i didn't recognize any of the tell-tale signs of his drunkeness. it was amazing to watch the test being administered.

[Your Mentor]

That's the beauty of HGN. The tested subject isn't aware of it happening and the results are directly related to their blood/alcohol level. So the higher their BAC the more pronounced the results. It's totally unaffected by alcohol tolerance and can't be supressed or controlled by the subject. When I first came on it was treated like voodoo forensics but today it's recognized as the best test to determine DUI.

[Mac]

Although most courts won't recognize it, HGN is by far the most reliable FST - "The eyes never lie". A trained, experienced officer can accurately estimate BAC to within .02% almost every time via HGN. Before PAS devices, I lived and died by it - the VERY few times I second-guessed myself after administering HGN, I was wrong every time...and kicked myself in the ass for not trusting what I knew was right.

Great answers above, YM....DUI *is* an incredibly involved topic, and it's difficult to give cut-and-dried answers to questions like that.

[Your Mentor]

Thanks Mac. You know we have current case law you can cite if you're having problems getting HGN admitted. I'll dig it up and PM it to you.

[DReed]

In response to the low BAC question. Since many deuces in our county have prior arrests and are on probation for those convictions, I've sometimes used the probation/parole violations to arrest low blows who need to go to jail. By "need" I don't mean attitude, I'm talking about the fact that they're driving from one bar to another or are planning to continue drinking....it gets them off the street that night and keeps them from being my next DUI HIT AND RUN Crash....